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In a Georgia case, decided in 1892, the jury reached a verdict at night and sealed it up. To escape the sweltering Georgia heat, jurymen went out on the veranda, where some of them ate watermelon—guarded by two strict bailiffs who “prevented all intercourse by others ... during the night.” The defendant, who was convicted, appealed on the point (among others) that the jury had left its isolation-chamber; but to no avail. What saved the day, of course, was the lack of “intercourse” with the outside world.56

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Mark Twain said, on this subject, “I do not know what a palladium is, having never seen a palladium, but it is a good thing no doubt at any rate.”61

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There is some evidence for the earlier part of the century, too. Theodore Ferdinand’s data for Boston’s police court show a rise in guilty pleas between 1826 and 1850 from 9.3 to 51.3 percent in public drunkenness cases; in larceny cases, from 10 to 22.2 percent; in violations of city ordinances from 20 to 65.6 percent. Ferdinand argues that in some classes of cases, plea bargaining accounts for the swelling rate of guilty pleas.64

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Historically, neither side had the right to appeal. The modem system developed in a piecemeal, ragged way. But, in essence, one way of looking at the way appeal developed is simply to say that states started to give defendants the right to have review in appeals court, but left the prosecution essentially where it was before.74

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Exactly what constituted double jeopardy was an issue the courts wrestled with occasionally. In one interesting Massachusetts case, a man named Hodgdon delivered cloth, velvet, flannel, and other materials to the defendant; the defendant was supposed to make overcoats out of these materials. Hodgdon returned the first few coats as unsatisfactory. Then defendant supposedly made off with the materials and the coats. He was tried for embezzling the cloth, the velvet, and so on, and was acquitted. Then he was indicted for embezzling the coats. The Supreme Judicial Court allowed the second trial; it represented a distinct, separate offense,.75

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Originally, the word appeal referred to certain kinds of civil appeals, in cases of equity. But it is the common word for the process of taking a case to a higher court; and by now it is technically quite correct to use the term for all such cases.

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Most cases were decided on technical points of procedure: ninety-seven cases turned on procedural points and only seventy-nine on matters of substance (although the line between these two is not always clear).

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In Olmstead v. United States,14 the defendants were a big-time operation, with about fifty employees, including salesmen, bookkeepers, an attorney, and a fleet of boats to bring liquor from Canada to Washington. Yearly sales were on the order of $2 million. The government used wiretapping to smash this nefarious ring. The issue before the Supreme Court was whether the government could use this evidence to convict; the Taft Court said yes. Wiretapping did not “amount to a search or seizure within the meaning of the Fourth Amendment.” Four justices dissented, including Oliver Wendell Holmes, Jr., who said he felt that it was “less evil that some criminals should escape than that the Government should play an ignoble part.”15

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This was a sizable jump for civil rights; in 1961, there had been only eight cases. There were 3,043 cases under the Selective Service Act in 1973, although this was a declining category.26

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Harding’s Secretary of the Interior Albert Fall, was charged with conspiracy to defraud the United States and with bribery. He was convicted of bribery in 1929. Harry Sinclair and Edward Doheny, oil executives who were involved in the scandal, were never convicted for their part in this sordid affair.

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The Constitution might well be contrasted with the state constitutions, which have been, on the whole, considerably less stable, and certainly less sacrosanct. Many states have gone through